No. 13-185 ================================================================

In The

Supreme Court of the United States --------------------------------- ---------------------------------

MINNESOTA MAJORITY, MINNESOTA VOTERS ALLIANCE, MINNESOTA NORTH STAR TEA PARTY PATRIOTS, ELECTION INTEGRITY WATCH, SUSAN JEFFERS, INDIVIDUALLY AND AS AN ELECTION

JUDGE, DAN MCGRATH AND ANDY CILEK,

Petitioners, vs.

JOE MANSKY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS THE ELECTIONS MANAGER FOR RAMSEY COUNTY; RACHEL M. SMITH, IN HER INDIVIDUAL AND OFFICIAL CAPACITY AS THE

ELECTIONS MANAGER FOR HENNEPIN COUNTY; MIKE FREEMAN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS THE HENNEPIN COUNTY ATTORNEY; JOHN J. CHOI, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS THE RAMSEY COUNTY ATTORNEY;

AND MARK RITCHIE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS SECRETARY OF STATE,

Respondents. --------------------------------- ---------------------------------

On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit

--------------------------------- --------------------------------- RESPONDENTS’ JOINT RESPONSE TO THE

PETITION FOR A WRIT OF CERTIORARI --------------------------------- ---------------------------------

NATHAN HARTSHORN OFFICE OF THE MINNESOTA ATTORNEY GENERAL 445 Minnesota Street, Suite 1800 Saint Paul, MN 55101 Telephone: (651) 757-1252 Attorneys for Respondent Mark Ritchie ROBERT B. ROCHE RAMSEY COUNTY ATTORNEY’S OFFICE 121 7th Place East, Suite 4500 Saint Paul, MN 55101 Telephone: (651) 266-3032 Attorneys for Respondents Joe Mansky and John J. Choi

DANIEL P. ROGANCounsel of Record BETH STACK HENNEPIN COUNTY ATTORNEY’S OFFICE A-2000 Government Center Minneapolis, MN 55487 Telephone: (612) 348-5529 E-mail: daniel.rogan @hennepin.us Attorneys for Respondents Rachel M. Smith and Michael O. Freeman

================================================================ COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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QUESTION PRESENTED

Section 211B.11, subd. 1 of Minnesota Statutes creates a protected zone within 100 feet of a polling place on Election Day and also prohibits individuals who enter the polling place from wearing “a political badge, political button, or other political insignia” while inside the polling place.

The question presented in the petition is whether Minnesota’s law prohibiting individuals from wearing “a political badge, political button, or other insignia” within the polling place on Election Day is unconsti-tutional on its face because it violates the First Amendment to the United States Constitution.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED................................... i

TABLE OF AUTHORITIES ................................. iv

STATEMENT OF THE CASE .............................. 1

A. Introduction ............................................... 1

B. Parties ....................................................... 2

C. Minnesota’s Speech Limitation Within Polling Places ............................................. 3

D. Petitioners’ Lawsuit ................................... 5

ARGUMENT ........................................................ 8

I. Review of Petitioners’ Facial Challenge is Not Appropriate Because Petitioners’ As-Applied Challenge is Still Pending ...... 9

II. The Court of Appeals Correctly Held that Section 211B.11 is Not Substantially Over-broad .......................................................... 12

A. The Court of Appeals Applied the Correct First Amendment Test ............ 12

1. The Polling Place is a Nonpublic Forum and Speech Restrictions Must be Reasonable and Viewpoint-Neutral ........................................... 14

2. Section 211B.11 is Constitutional Be-cause it is Reasonable and View-point-Neutral .................................. 19

B. Section 211B.11 is Not Substantially Overbroad ............................................ 24

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TABLE OF CONTENTS – Continued

Page

1. Section 211B.11 Does Not Reach a Substantial Number of Imper-missible Applications ...................... 25

2. The Court of Appeals’ Decision Does Not Conflict with Jews for Jesus ............................................... 32

CONCLUSION ..................................................... 34

iv

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Am. Fed’n of State, County & Mun. Employees, Council 25 v. Land, 583 F. Supp. 2d (E.D. Mich. 2008) .............................................................. 18

Berner v. Delahanty, 129 F.3d 20 (1st Cir. 1997) ....... 23

Bd. of Trustees of State Univ. of New York v. Fox, 492 U.S. 469 (1989) ................................... 10, 11

Board of Airport Commissioners v. Jews for Jesus, 482 U.S. 569 (1987) .............. 12, 24, 25, 32, 33

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ... 7, 9, 11, 28

Burson v. Freeman, 504 U.S. 191 (1992) ........... passim

Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, ___ U.S. ___, 130 S. Ct. 2971 (2010) ............ 14, 15, 20

Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d 12 (11th Cir. 2009) ........................................................................ 29

City of Houston, Tex. v. Hill, 482 U.S. 451 (1987) ......................................................................... 9

Cohen v. California, 403 U.S. 15 (1971) .................... 23

Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788 (1985) ...................... passim

Cotz v. Mastroeni, 476 F. Supp. 2d 332 (S.D.N.Y. 2007) ........................................................................ 18

Greer v. Spock, 424 U.S. 828 (1976) ........................... 21

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TABLE OF AUTHORITIES – Continued

Page

International Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) .............................. 22

Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) ............................... 22

Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) ....................................................................... 21

Marlin v. District of Columbia Bd. of Elections and Ethics, 236 F.3d 716 (D.C. Cir. 2001) ........ 18, 23

Mills v. Alabama, 384 U.S. 214 (1966) ...................... 27

Minnesota State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271 (1984) ................................................. 14

Morse v. Frederick, 551 U.S. 393 (2007) .................... 23

New York v. Ferber, 458 U.S. 747 (1982) ............... 9, 29

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) ................................ passim

PG Publ’g v. Aichele, 705 F.3d 91 (3d Cir. 2013) ......... 18

Pleasant Grove City v. Summum, 555 U.S. 460 (2009) ................................................................. 15, 20

Ramos v. Carbajal, 508 F. Supp. 2d 905 (D. N.M. 2007) ............................................................... 18

Reynolds v. Sims, 377 U.S. 533 (1964) ...................... 27

Schirmer v. Edwards, 2 F.3d 117 (5th Cir. 1993) ...... 29

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) ................................................. 23

United Food & Commercial Workers Local 1099 v. City of Sidney, 364 F.3d 738 (6th Cir. 2004) ... 18, 29

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TABLE OF AUTHORITIES – Continued

Page

United States v. Kokinda, 497 U.S. 720 (1990) ......... 21

United States v. Stevens, 559 U.S. 460 (2010) ............. 7

Virginia v. Hicks, 539 U.S. 113 (2003) ............. 9, 25, 28

Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) .............. 7, 30

MINNESOTA CASES

Erickson v. Sunset Mem’l Park Ass’n, 108 N.W.2d 434 (Minn. 1961) ........................................ 31

Pearson v. Probate Court of Ramsey County, 287 N.W.2d 297 (Minn. 1939) ................................. 31

State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695 (Minn. 1996) ............................................................ 31

Van Asperen v. Darling Olds, Inc., 93 N.W.2d 690 (Minn. 1958) ..................................................... 31

OTHER STATE CASES

Poniktera v. Seiler, 104 Cal. Rptr. 3d 291 (Cal. Ct. App. 2010) .......................................................... 18

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I .......................................... passim

FEDERAL RULES

Fed. R. Civ. P. 12(b)(6) .................................................. 6

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TABLE OF AUTHORITIES – Continued

Page

MINNESOTA STATUTES

Minn. Stat. § 204C.07 ................................................. 23

Minn. Stat. § 211B.06 ................................................. 31

Minn. Stat. § 211B.11 ......................................... passim

OTHER MINNESOTA AUTHORITIES

1893 Minn. Laws, ch. 4, § 108 ................................ 4, 25

1912 Minn. Laws, Ex. Sess., ch. 3, §§ 13, 14 ......... 4, 25

OTHER AUTHORITIES

Del. Code Title 15 § 4942 ............................................ 26

La. St. Rev. § 18:1462(A)(3-4) ..................................... 26

Mont. Code § 13-35-211 .............................................. 26

N.D. Cent. Code § 16.1-10-03 ..................................... 26

N.J. Stat. § 19:34-19 ................................................... 26

Tenn. Stat. § 2-7-111(b) ............................................... 15

Tex. Election Code § 61.010 ........................................ 26

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STATEMENT OF THE CASE

A. Introduction.

The Court should deny the petition for review in this matter. There are no compelling reasons for this Court to review the U.S. Court of Appeals for the Eighth Circuit’s determination that petitioners’ First Amendment facial challenge failed as a matter of law. The petition is primarily based on two arguments: (1) the court of appeals erred when it used this Court’s public forum doctrine to analyze Minnesota’s speech limitations within a polling place; and (2) the court of appeals erred in its application of the over-breadth doctrine.

Despite petitioners’ protests to the contrary, the court of appeals’ analysis on these two issues is in accord with other circuit court decisions, does not con-flict with any Supreme Court precedent, and does not present a significant issue that needs to be addressed by this Court. The court of appeals’ legal conclusion that the interior of a polling place is a nonpublic forum in which speech restrictions are constitutional as long as they are reasonable and viewpoint-neutral is the same conclusion reached by every court that has analyzed the issue and constitutes a logical and straight-forward application of Burson v. Freeman, 504 U.S. 191 (1992). In addition, petitioners’ facial overbreadth challenge is not appropriate for review because the as-applied challenge raising the same legal issues is pending in the district court and the court of appeals’ dismissal of this claim is in harmony with Supreme Court precedent and other circuit court decisions.

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B. Parties.

Petitioners are a collection of groups that purport to be concerned about the integrity of elections, and individuals who are eligible voters and/or election judges. Election Integrity Watch (“EIW”) is a coalition of organizational petitioners: Minnesota Majority, Minnesota Voters Alliance and Minnesota North Star Tea Party Patriots. App. 2. Prior to the 2010 election, EIW orchestrated a public campaign to affect behav-ior within the polling place on Election Day, by creat-ing and disseminating a “Please I.D. Me” button to be worn by voters inside the polling place. App. 2-3, 23, 67. The button states in large letters “Please I.D. Me” and lists both a toll-free phone number and EIW’s website address. Id. Minnesota does not have a photo identification requirement to vote.

The “Tea Party” is a well-known, well-publicized political movement in the United States, with numer-ous groups both nationally and in Minnesota. In July 2010, the U.S. House of Representatives recognized a Tea Party caucus, which is headed by U.S. Repre-sentative Michele Bachmann from Minnesota’s Sixth Congressional District and in 2010 had more than 50 members, all of whom were Republicans.1

1 See Committee on House Administration’s website, 112th Congress Congressional Member Organizations List, http://cha. house.gov/sites/republicans.cha.house.gov/files/documents/cmo_ cso_docs/cmo_112th_congress.pdf (last visited November 3, 2013) and 111th Congress Congressional Member Organizations List, http://cha.house.gov/sites/republicans.cha.house.gov/files/documents/

(Continued on following page)

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Plaintiff North Star Tea Party Patriots is a coalition of local associations in Minnesota and iden-tified with the national Tea Party Patriots organiza-tion. The North Star Tea Party Patriots distribute t-shirts and other apparel from the national Tea Party Patriots organization, with the Tea Party’s logo and related political slogans, including “Don’t tread on me,” “Liberty,” “We’ll Remember in November,” and “Fiscal Responsibility, Limited Government, Free Markets.” App. 3, 68.

On the eve of Election Day 2010, petitioners sought a temporary restraining order (“TRO”) against the Minnesota Secretary of State, the Henne-pin County Attorney and Elections Manager (the “Hennepin County respondents”), and the Ramsey County Attorney and Elections Manager (the “Ram-sey County respondents”) (together “respondents”), to enjoin enforcement of a portion of Section 211B.11, subd. 1 (“Section 211B.11”), of Minnesota Statutes.

C. Minnesota’s Speech Limitation Within

Polling Places.

Minnesota prohibits displaying “campaign mate-rial,” posting “signs” or soliciting voters within 100 feet of the polling place and prohibits people from

cmo_cso_docs/cmo_112th_congress.pdf (last visited November 2, 2013); Congresswoman Michele Bachmann’s website, http:// bachmann.house.gov/TeaPartyCaucus/ (last visited November 3, 2013).

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wearing “a political badge, political button, or other political insignia . . . at or about the polling place.” Minn. Stat. § 211B.11, subd. 1. This statute is the current codification of a Minnesota law that dates back to 1893, designed to protect Minnesotans’ right to vote in an orderly and controlled environment without confusion, interference, or distraction. See 1893 Minn. Laws, ch. 4, § 108; 1912 Minn. Laws, Ex. Sess., ch. 3, §§ 13, 14.

On November 1, 2010, after a hearing, the dis-trict court denied the TRO. App. 22. On the same date, respondents issued identical policies on Section 211B.11 to all polling places clarifying what items were prohibited from inside polling places. The poli-cies first identified examples of “political” material prohibited from polling places, including but not limited to:

• Any item including the name of a politi-cal party in Minnesota, such as the Republican, DFL, Independence, Green or Libertarian parties.

• Any item including the name of a can-didate at any election.

• Any item in support of or opposition to a ballot question at any election.

• Issue oriented material designed to in-fluence or impact voting (including spe-cifically the “Please I.D. Me” buttons).

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• Material promoting a group with recog-nizable political views (such as the Tea Party, MoveOn.org, and so on).

App. 25-26, 64-66.

The policy then directs election judges to ask individuals to cover up or remove any political mate-rial while in the polling place. However, the policy explicitly states that “[e]ven if a voter refuses to [remove or cover political material], [election judges] must permit any eligible voter to receive a ballot and vote.” Id.

D. Petitioners’ Lawsuit.

After the 2010 election, petitioners amended their complaint and respondents moved to dismiss the complaint as a matter of law. Petitioners’ amended complaint contains four constitutional claims:

(1) a First Amendment challenge to Section 211B.11, subd. 1, as applied to petitioners through respondents’ policies (Count I);

(2) a due process claim (Count II);

(3) an equal protection claim (Count III); and

(4) a First Amendment challenge to Section 211B.11, subd. 1, on its face (Count IV).

App. 29.

On April 29, 2011, the district court granted re-spondents’ motions to dismiss the amended complaint

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in its entirety, concluding that petitioners failed to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Petitioners appealed the dismissal of the First Amendment and equal protection claims. The court of appeals affirmed in part and reversed in part. The court affirmed the dismissal of petitioners’ equal protection claim. App. 16. With respect to the two First Amendment counts, the court reversed the district court’s dismissal of petitioners’ as-applied challenge and remanded this claim, App. 13; it af-firmed the dismissal of the facial challenge, App. 11.

In analyzing petitioners’ First Amendment claims, the Eighth Circuit applied this Court’s traditional First Amendment public forum analysis and concluded that the inside of a polling place was a nonpublic forum and therefore Section 211B.11’s limitation on speech was constitutional if it was viewpoint-neutral and “ ‘reasonable in light of the purpose which the forum at issue serves.’ ” App. 8 (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 49 (1983)). The court of appeals reversed and remanded the as-applied challenge because it concluded that the district court considered matters outside the plead-ings in considering the application of Section 211B.11 to petitioners. App. 13. The court of appeals was unanimous in its analysis of this claim and the re-mand. App. 13, 16 (Shepherd, J., concurring in part and dissenting in part). Accordingly, petitioners’ as-applied challenge to Section 211B.11 is currently pending in the district court.

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With respect to the facial challenge, the court of appeals noted that a law may be invalidated as over-broad only if “ ‘a substantial number of its applica-tions are unconstitutional, judged in relation to the statute’s legitimate sweep.’ ” App. 5 (quoting United States v. Stevens, 559 U.S. 460, 473 (2010), in turn quoting Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008)). The court also noted that the “ ‘decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation.’ ” Id. at 9 (quoting Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 808 (1985)) (emphasis in original).

The majority then concluded that Section 211B.11 has a “plainly legitimate sweep” when it prohibits speech about a political campaign (in contrast to non-campaign political speech) and stated:

Even if Minnesota acted unreasonably in applying the statute to some material, the complaint does not allege that there were a “substantial number” of such unreasonable applications in relation to the statute’s reasonable applications. See Wash. State Grange, 552 U.S. at 449 n.6. “[W]hatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.” Broadrick v. Oklahoma, 413 U.S. 601, 615-16 (1973). [Petitioners] ha[ve] failed to state a facial claim under

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the First Amendment against Minn. Stat. § 211B.11, subd. 1.

App. 10-11.

Judge Shepherd agreed with the overbreadth standards employed by the majority in analyzing petitioners’ facial challenge; however, in his dissent he expressed his belief that further factual develop-ment was required to determine how the restrictions in Section 211B.11 “are reasonable limits on free speech which rationally relate to the state’s interest in maintaining order and preserving the integrity at the polling place.” App. 20. He would have remanded this claim “to allow the record to be developed regard-ing [petitioners’] facial challenge.” Id.

The petition challenges only the court of appeals’ decision dismissing petitioners’ First Amendment facial challenge to Section 211B.11.

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ARGUMENT

The Court should deny the petition because petitioners’ facial challenge is not ripe for review and the court of appeals’ dismissal of petitioners’ facial challenge to Section 211B.11 does not conflict with Supreme Court precedent or any other circuit court decisions. Neither the court of appeals’ application of the public forum analysis to the interior of a polling place nor its overbreadth analysis raise any compel-ling legal issues requiring this Court’s review.

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I. Review of Petitioners’ Facial Challenge is Not Appropriate Because Petitioners’ As-Applied Challenge is Still Pending.

This Court should not review petitioners’ facial overbreadth challenge to Section 211B.11 because the exact same legal arguments presented in petitioners’ overbreadth claims in the petition are pending before the district court in petitioners’ as-applied challenge. The overbreadth doctrine constitutes “a departure from traditional rules of standing.” Broadrick, 413 U.S. at 613. If an overbreadth challenge succeeds, “any enforcement” of the regulation at issue is “totally forbidden.” Id. This prohibition constitutes “strong medicine,” which courts use “sparingly and only as a last resort.” Id. Accordingly, this Court has held that even when statutes involve limitations on speech “[o]nly a statute that is substantially overbroad may be invalidated on its face.” City of Houston, Tex. v. Hill, 482 U.S. 451, 458 (1987) (citing New York v. Ferber, 458 U.S. 747, 769 (1982)). See also Virginia v. Hicks, 539 U.S. 113, 119-20 (2003) (“[W]e have insisted that a law’s application to protected speech be ‘sub-stantial,’ not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications, before applying the ‘strong medicine’ of overbreadth invalidation.”) (internal citations omit-ted).

Petitioners’ as-applied challenge pending in the district court is predicated on whether petitioners’ First Amendment rights were violated by Section 211B.11’s prohibition on: (1) the “inert” or “passive”

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political speech on the buttons and t-shirts peti-tioners wanted to and did wear (“Please I.D. Me” buttons and Tea Party t-shirts); and (2) non-campaign political speech regarding photo identification and the Tea Party. These constitutional issues should be de-cided in petitioners’ as-applied challenge pending in the district court and not in a facial challenge to Section 211B.11.

Petitioners’ as-applied challenge will resolve whether Section 211B.11 can be constitutionally ap-plied to “passive” speech on buttons and clothing and “political” speech not directly related to a candidate or ballot measure. In other words, the “overbreadth” of Section 211B.11 claimed by petitioners in the peti-tion is directly presented in the application of Section 211B.11 to their “Please I.D. Me” buttons and Tea Party t-shirts. Under these circumstances, it is not appropriate for the Court to reach out and decide these legal issues in the context of a facial overbreadth challenge. See Bd. of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 484-85 (1989). In Fox, this Court declined to address a facial overbreadth chal-lenge when the as-applied challenge had not been resolved and stated:

It is not the usual judicial practice, however, nor do we consider it generally desirable, to proceed to an overbreadth issue unneces-sarily – that is, before it is determined that the statute would be valid as applied. Such a course would convert use of the over-breadth doctrine from a necessary means of

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vindicating the plaintiff ’s own right not to be bound by a statute that is unconstitutional into a means of mounting gratuitous whole-sale attacks upon state and federal laws. Moreover, the overbreadth question is ordi-narily more difficult to resolve than the as-applied, since it requires determination whether the statute’s overreach is substan-tial, not only as an absolute matter, but “judged in relation to the statute’s plainly legitimate sweep,” Broadrick v. Oklahoma, supra, at 615, 93 S. Ct., at 2917, and there-fore requires consideration of many more applications than those immediately before the court. Thus, for reasons relating both to the proper functioning of courts and to their efficiency, the lawfulness of the particular application of the law should ordinarily be decided first.

Fox, 492 U.S. at 484-85.

Because petitioners’ as-applied challenge will resolve the overbreadth issues raised in petitioners’ facial challenge, this Court should not grant the petition. Instead, “whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.” Broadrick, 413 U.S. at 615-16.

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II. The Court of Appeals Correctly Held that Section 211B.11 is Not Substantially Over-broad.

In addition to not being ripe for review, this Court should decline to review petitioners’ overbreadth argument because: (1) the court of appeals applied the correct First Amendment test; and (2) Section 211B.11 is not overbroad and does not conflict with Board of Airport Commissioners v. Jews for Jesus, 482 U.S. 569 (1987).

A. The Court of Appeals Applied the

Correct First Amendment Test.

Petitioners’ and amici’s2 primary argument in support of review is their assertion that the court of appeals’ overbreadth analysis was erroneous because it applied the wrong First Amendment test to Section 211B.11. They argue the court of appeals erred when it concluded that the interior of a polling place was a nonpublic forum in which speech restrictions like Section 211B.11 are constitutional if they are reason-able and viewpoint-neutral. Pet. 17-22; Tea Party Am. 7-11; Rutherford Am. 3-8. In fact, the court of appeals’ unanimous holding on this point is in accord with Supreme Court precedent and with every lower court decision that has analyzed speech restrictions within a polling place.

2 Amicus Curiae briefs were filed in support of the petition by the Rutherford Institute and the Cato Institute jointly (“Ruth-erford Am.”) and the Tea Party Patriots, Inc. (“Tea Party Am.”).

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Apparently recognizing the futility of arguing that a polling place is a public forum that would re-quire Section 211B.11 to satisfy strict scrutiny review, petitioners and amici simply ignore this Court’s pub-lic forum doctrine or argue that it should be jetti-soned when analyzing speech limitations in polling places or the type of speech at issue here. Pet. 17-22; Tea Party Am. 7-11; Rutherford Am. 3-8. Petitioners argue that Section 211B.11 must satisfy strict scruti-ny (or is unconstitutional per se) either: (1) because of the specific medium of speech targeted by Section 211B.11 (described by petitioners as “inert” or “pas-sive” speech on clothing or buttons), Pet. 24-25; Tea Party Am. 17-20; Rutherford Am. 12-14; or (2) be-cause Section 211B.11’s content-based restriction is aimed at “political” speech. Pet. 17-22; Tea Party Am. 12-17; Rutherford Am. 3-11.

Petitioners’ argument that elevated First Amend-ment protections are required for speakers who wear their message or for laws aimed at political speech in a nonpublic forum finds no support in this Court’s precedent. In fact, this Court created the public forum analysis as an analytical framework for balancing when and where government interests trump speaker interests on public property. Accordingly, this Court’s review of the court of appeals’ application of the public forum to the interior of a polling place is not needed.

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1. The Polling Place is a Nonpublic Forum and Speech Restrictions Must be Reasonable and Viewpoint-Neutral.

In light of petitioners’ failure to even discuss the public forum analysis in the petition, it is important to highlight that the unanimous holding of the court of appeals that the interior of a polling place is a nonpublic forum in which speech restrictions need only be reasonable and viewpoint-neutral is solidly grounded in this Court’s precedent. For more than thirty years, the public forum analysis has been “a fundamental principle of First Amendment doctrine.” Minnesota State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 280 (1984) (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)); see also Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, ___ U.S. ___, 130 S. Ct. 2971, 2984 (2010) (“In a progression of cases, this Court has employed forum analysis to determine when a governmental entity, in regulating property in its charge, may place limitations on speech.”).

The forum analysis is predicated on the fact that “[n]othing in the Constitution requires the Govern-ment freely to grant access to all who wish to exercise their right to free speech on every type of Govern-ment property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius, 473 U.S. at 799-800. As a result, this Court has “adopted a forum

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analysis as a means of determining when the Govern-ment’s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes.” Id. at 800. This Court has identified three types of fora: “the traditional public forum, the public forum created by government designation, and the nonpublic forum.” Id. at 802.3

In order to perform a forum analysis of speech restrictions within polling places, it is necessary to understand the intended purpose of polling places and the activity that takes place within them. Statutes limiting political activity in and around polling places like Section 211B.11 have been in effect in every state for many years. In Burson v. Freeman, this Court employed the forum analysis in its review of a Ten-nessee statute that is extremely similar to Sec- tion 211B.11, subd. 1. 504 U.S. 191, 193 (1992). The statute at issue in Burson, Tenn. Stat. § 2-7-111(b), created a “campaign-free zone” within 100 feet of the

3 The Supreme Court has more recently described the third category, the nonpublic forum, as a “limited public forum.” See Christian Legal Soc’y, 130 S. Ct. at 2984 n.11. This change in terminology of the third category has not changed the governing standard, as a “limited public forum,” like a “nonpublic forum,” may be “ ‘limited to use by certain groups or dedicated solely to the discussion of certain subjects,’ ” and a governmental en- tity “ ‘may impose restrictions on speech that are reasonable and viewpoint-neutral.’ ” Id. (quoting Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009)). Respondents will refer to this third category as a nonpublic forum, as the Court of Appeals did.

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entrance to a polling place and the building in which the polling place was located by prohibiting “campaign posters, signs or other campaign materials, distribu-tion of campaign materials, and solicitation of votes for or against any person or political party or position on a question.” Id. at 193-94. The plurality first con-cluded that because the campaign-free zones included sidewalks and streets adjacent to polling locations, the law banned speech in public forums and was therefore subject to exacting scrutiny. Id. at 196 n.2, 198.

The Court then considered whether the Tennessee law satisfied exacting scrutiny. The Court examined the history of voting procedures in the United States, including specifically the characteristics of an official ballot and ballot secrecy. Id. at 202. The Court noted that “all 50 States limit access to the areas in and around polling places,” id. at 206 (citations omitted), and then stated:

In sum, an examination of the history of election regulations in this country reveals a persistent battle against two evils: voter intimidation and election fraud. After an unsuccessful experiment with an unofficial ballot system, all 50 States, together with numerous other Western democracies, settled on the same solution: a secret ballot secured in part by a restricted zone around the vot-ing compartments. We find this widespread and time-tested consensus demonstrates that some restricted zone is necessary in order to serve the States’ compelling interests in

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preventing voter intimidation and election fraud.

Id. Although the Court “reaffirm[ed] that it is the rare case in which . . . a law survives strict scrutiny,” it concluded that the Tennessee statute met the standard because “[a] long history, a substantial con-sensus, and simple common sense show that some restricted zone around polling places is necessary to protect” voters’ right “to cast a ballot in an election free from the taint of intimidation and fraud.” Id. at 211.

In contrast to the public space (sidewalks and streets) outside a polling place addressed in Burson, the forum at issue here is the interior of the polling place itself – where voters actually register and then obtain and cast their ballots. In practice, the inside of a polling place has never been a traditional public forum, “devoted to assembly and debate” like public parks, streets and sidewalks. Burson, 504 U.S. at 196, quoting Perry Educ. Ass’n, 460 U.S. at 45; see also Burson, 504 U.S. at 214 (Scalia, J., concurring in the judgment) (“[R]estrictions on speech around poll-ing places on election day are as venerable a part of the American tradition as the secret ballot,” and “the environs of a polling place, on election day, are simply not a ‘traditional public forum[.]’”).

Instead, the interior of the polling place can only be considered a nonpublic forum, reserved for its only intended use: “each voter’s communication of his own elective choice . . . carried out privately – by secret

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ballot in a restricted space.” Marlin v. District of Columbia Bd. of Elections and Ethics, 236 F.3d 716, 719 (D.C. Cir. 2001). Therefore, it is not surprising that every court to consider the issue has concluded that the interior of a polling place on Election Day is a nonpublic forum. See PG Publ’g v. Aichele, 705 F.3d 91, 100 n.10 (3d Cir. 2013); United Food & Commer-cial Workers Local 1099 v. City of Sidney, 364 F.3d 738, 749-50 (6th Cir. 2004); Marlin, 236 F.3d at 719; Am. Fed’n of State, County & Mun. Employees, Council 25 v. Land, 583 F. Supp. 2d 840, 847-48 (E.D. Mich. 2008); Cotz v. Mastroeni, 476 F. Supp. 2d 332, 364-65 (S.D.N.Y. 2007); Ramos v. Carbajal, 508 F. Supp. 2d 905, 919 (D. N.M. 2007). See also Poniktera v. Seiler, 104 Cal. Rptr. 3d 291, 302 (Cal. Ct. App. 2010) (“The comments of both Justice Scalia’s concurring opinion in Burson, as well as the dissent, confirm our reading that Burson understood it was not approving the application of strict scrutiny to restrictions on con-duct within the confines of the polling station[.]”) (emphasis in original).

Because the interior of a polling place is a non-public forum, the appropriate test for analyzing the constitutionality of Section 211B.11’s limitation on individuals wearing “a political badge, button, or other political insignia” is whether the restriction is viewpoint-neutral and “reasonable in light of the pur-pose” served by polling places on Election Day. Perry Educ. Ass’n, 460 U.S. at 49. The reasonableness test grants the government significant latitude because the speech restriction “need only be reasonable; it need

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not be the most reasonable or the only reasonable limitation.” Cornelius, 473 U.S. at 808 (emphasis in original).

Petitioners’ argument that this Court’s review is needed because the court of appeals erred in applying the forum analysis and instead should have applied heightened review of Section 211B.11 is in direct conflict with every court that has analyzed speech restrictions within a polling place. With its decision in this case, the Eighth Circuit became the fourth circuit court to hold that the interior of a polling place was a nonpublic forum in which speech restrictions need only be reasonable and viewpoint-neutral. See App. 8-9, 17 (Shepherd, J., dissenting). This holding is a logical application of the forum analysis and is in accord with Burson. Because the court of appeals properly analyzed the issue and applied this Court’s precedent, certiorari is unnecessary.

2. Section 211B.11 is Constitutional Be-

cause it is Reasonable and Viewpoint-Neutral.

Despite this overwhelming case law, petitioners and amici boldly argue that review of the court of appeals’ decision is needed because Section 211B.11’s speech restrictions should be subjected to heightened scrutiny. Pet. 17; Tea Party Am. 7-11; Rutherford Am. 3-8. Petitioners’ and amici’s arguments are in direct conflict with this Court’s precedents relating to nonpublic forums. The First Amendment test for speech in a nonpublic forum is whether the speech

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restriction is “reasonable” and “viewpoint neutral.” See Christian Legal Soc’y, 130 S. Ct. at 2984 n.11; Summum, 555 U.S. at 470; Perry Educ. Ass’n, 460 U.S. at 46-79. Despite citing numerous cases regard-ing the importance of First Amendment freedoms, neither petitioners nor amici point the Court to a single case in which this Court applied strict scrutiny to a viewpoint-neutral government speech restriction in a nonpublic forum. An examination of petitioners’ specific arguments in support of their belief that the court of appeals should have ignored the forum analysis and simply applied strict scrutiny reveals that they are not supported by precedent.

Petitioners argue that the court of appeals should have applied heightened scrutiny to Section 211B.11’s speech limitations because they assert that restric-tions on “political” speech must always satisfy strict scrutiny and Section 211B.11 is an “absolute” ban on speech that is per se unconstitutional. Pet. 17-28. While it is undisputed that content-based restrictions on speech in traditional public fora are subject to strict scrutiny, content-based exclusions of speech in a non-public forum need only be viewpoint-neutral and reasonable in relation to the forum’s purpose. See Perry, 460 U.S. at 45. The fact that Section 211B.11’s content restriction is aimed at “political” speech has never been a basis for a per se rule requiring height-ened scrutiny or a per se rule of unconstitutionality as argued by petitioners.

In fact, the Court has repeatedly applied the public forum analysis to content-based restrictions

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aimed at “political” speech. See, e.g., United States v. Kokinda, 497 U.S. 720, 725-26 (1990) (plurality opinion) (applying public forum analysis and noting lower level of scrutiny applied to ban on political advertising on post office sidewalk); Burson, 504 U.S. at 211 (applying public forum analysis to law limiting “campaign speech” in public forum); Cornelius, 473 U.S. at 809 (applying public forum analysis to uphold ban on legal defense and political advocacy groups from charity drive aimed at federal employees in nonpublic forum because “avoiding the appearance of political favoritism is a valid justification for limiting speech in a nonpublic forum”); Greer v. Spock, 424 U.S. 828, 838 (1976) (applying public forum analysis and upholding regulation preventing political cam-paigning on nonpublic forum – a military base); see also Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974) (refusal to accept political advertising on city buses upheld). Accordingly, the court of appeals did not err when it applied the public forum analysis to Section 211B.11’s viewpoint-neutral speech limita-tion prohibiting wearing “a political badge, political button, or other political insignia . . . at or about the polling place.”4

4 Petitioners also argue that Section 211B.11 is not viewpoint-neutral. Pet. 20-23. However, a simple review of the language of Section 211B.11 reveals that it is a content-based statute that is viewpoint-neutral because it applies to all political material regardless of viewpoint. Viewpoint-based discrimination occurs when a law treats similarly situated speakers differently in order to advance or suppress a particular ideology or outlook.

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Petitioners and amici also argue that the Court should abandon the forum analysis and instead impose heightened scrutiny because Section 211B.11 targets speech on buttons and clothing. Pet. 25-28; Tea Party Am. 17-19; Rutherford Am. 12-14. Petition-ers assert that because of the medium chosen, this “inert” or “passive” speech is less intrusive and there-fore government restrictions like Section 211B.11 should need to satisfy heightened First Amendment scrutiny. However, the public forum analysis already incorporates the scope and medium of a particular speech restriction. See, e.g., International Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680-85 (1992) (O’Connor, J., concurring) (applying forum analysis and concluding airport was nonpublic forum and airport’s ban on “solicitation and receipt of funds,” described as disruptive was reasonable, but absent additional evidence, ban on less disruptive distribu-tion of literature was not).

Petitioners’ argument that the court of appeals erred by not creating a new test that requires appli-cation of heightened scrutiny to speech regulations aimed at speech on buttons or t-shirts conflicts with this Court’s First Amendment precedents. Buttons

See Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 393-94 (1993); Cornelius, 473 U.S. at 806. Although disputed by petitioners, the statute is plainly viewpoint-neutral, because it applies to any political insignia, no matter what viewpoint, opinion or perspective is represented. See Minn. Stat. § 211B.11, subd. 1.

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and expressive clothing obviously can be protected speech and this Court has not adopted different tests when the speech at issue is “inert” or “passive” words on signs, buttons or clothing. See, e.g., Morse v. Fred-erick, 551 U.S. 393, 408 (2007) (applying student speech test to banner stating “BONG HiTS 4 JESUS” during a school-sponsored event); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509-14 (1969) (applying student speech test to black arm-bands); Cohen v. California, 403 U.S. 15, 26 (1971) (standard First Amendment analysis to text-bearing jacket worn in public); see also Berner v. Delahanty, 129 F.3d 20, 26-29 (1st Cir. 1997) (applying forum analysis to speech restriction on political button within courtroom). The “reasonableness” of a particular restriction is a part of the First Amendment test for nonpublic forums and there is neither a reason nor any Supreme Court precedent to treat so-called “passive” or “inert” speech found on clothing under a different test.5

5 The Tea Party amici also argue that the non-public forum test is not appropriate because Section 211B.11 limits “voters’ free speech.” Tea Party App. 7. This argument fails for several reasons. First, Section 211B.11’s prohibition on individuals wearing “a political badge, button, or other insignia” applies to everyone within the polling place, including election judges, and partisan “challengers” that have the ability to “challenge” whether a voter is qualified, see Minn. Stat. § 204C.07. Second, this Court has already held that political campaign speech can be limited in and around polling places, see Burson, 504 U.S. at 196-97, and this holding was not predicated on whether the individual engaging in political campaign speech was a voter at that polling place. See also Marlin, 236 F.3d at 717-18 (applying

(Continued on following page)

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The court of appeals, consistent with every court that has analyzed the issue, correctly concluded that the interior of a polling place on Election Day is a nonpublic forum and that speech restrictions within the polling place are constitutional if they are rea-sonable and viewpoint-neutral. Accordingly, the court of appeals correctly rejected petitioners’ arguments that heightened scrutiny of Section 211B.11’s speech restrictions is required.

B. Section 211B.11 is Not Substantially

Overbroad.

In addition to arguing that the court of appeals applied the wrong level of scrutiny in its overbreadth analysis, petitioners assert the Court should grant the petition because the court of appeals’ conclusion that Section 211B.11 was not substantially overbroad was erroneous and conflicts with Board of Airport Commissioners v. Jews for Jesus, 482 U.S. 569 (1987). Supreme Court review of this issue is not needed. The court of appeals unanimously agreed on the legal standard applicable to petitioners’ overbreadth chal-lenge. The only disagreement was whether there was sufficient evidence. The majority believe that there was sufficient evidence to support a finding that Min-nesota’s law had a legitimate sweep, App. 11, while

Burson to a voter wearing a sticker supporting a mayoral can-didate). Finally, the scope of Section 211B.11’s speech limitation is considered as part of the analysis of whether the limitation on speech is reasonable.

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Judge Shepherd believed additional factual analysis was needed before making such a legal conclusion, App. 20.

This Court’s review is not needed to examine whether sufficient evidence of overbreadth was pre-sented. The court of appeals’ conclusion that Section 211B.11 was not overbroad was sound and does not conflict with Jews for Jesus.

1. Section 211B.11 Does Not Reach a

Substantial Number of Impermissi-ble Applications.

Petitioners argue that the court of appeals erred in dismissing their facial challenge because they assert Section 211B.11 reaches a substantial amount of speech that cannot be prohibited from within the polling place. As discussed above, this Court has “in-sisted that a law’s application to protected speech be ‘substantial,’ not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications, before applying the ‘strong medicine’ of overbreadth invalidation.” Virginia v. Hicks, 539 U.S. 113, 119-20 (2003) (internal citations omitted).

Section 211B.11 has existed for more than 100 years. See 1893 Minn. Laws, ch. 4, § 108; 1912 Minn. Laws, Ex. Sess., ch. 3 §§ 13, 14. Like similar

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prohibitions in many other states,6 this provision bars “a political badge, political button, or other political insignia” from inside the polling place. Minn. Stat. § 211B.11, subd. 1. Because a polling place is a nonpublic forum, the relevant standard for reviewing this speech limitation is whether it is “reasonable in light of the purpose which [the polling place] serves. Perry Educ. Ass’n, 460 U.S. at 49. This limitation on speech “need only be reasonable; it need not be the most reasonable or the only reasonable limitation.” Cornelius, 473 U.S. at 808.

6 See, e.g., Del. Code Title 15 § 4942 (banning “electioneering” at polling place and within 50 feet, including “wearing of any button, banner or other object referring to issues, candidates or partisan topics”); La. St. Rev. § 18:1462(A)(3-4) (banning from the inside of a polling place and within 600 feet placing or displaying “campaign cards, pictures, or other campaign litera-ture,” and “political signs, pictures, or other forms of political advertising); Mont. Code § 13-35-211 (“A person may not buy, sell, give, wear, or display at or about the polls on an election day any badge, button, or other insignia which is designed or tends to aid or promote the success or defeat of any candi-date. . . .”); N.J. Stat. § 19:34-19 (“No person shall display, sell, give or provide any political badge, button or other insignia to be worn at or within 100 feet of the polls or within the polling place or room. . . .”); N.D. Cent. Code § 16.1-10-03 (“On the day of an election, no person may buy, sell, give, or provide any political badge, button, or any insignia to be worn at or about the polls on that day. No such political badge, button, or insignia may be worn at or about the polls on any election day.”); Tex. Election Code § 61.010 (“[A] person may not wear a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election, in the polling place or within 100 feet. . . .”).

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Section 211B.11’s limitation on wearing political badges, buttons, and other paraphernalia is a reason-able method to ensure that the polling place is a location where citizens can exercise the right to vote without confusion, distraction or distress, and elec-tion officials can preserve the integrity and reliability of elections. See Burson, 504 U.S. at 211 (“A long history, a substantial consensus, and simple common sense show that some restricted zone around polling places is necessary to protect that fundamental right.”); Reynolds v. Sims, 377 U.S. 533, 562 (1964) (“[T]he right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights. . . .”); Mills v. Alabama, 384 U.S. 214, 218 (1966) (recognizing state’s power “to regulate conduct in and around polls in order to maintain peace, order and decorum there”).

Petitioners argue that even when judged under the more lenient “reasonableness” standard, Section 211B.11 is overbroad because it impermissibly applies to a substantial amount of speech that cannot be constitutionally limited. Petitioners first argue that because Section 211B.11 prohibits “political” speech that on its face does not explicitly identify a political party, candidate, or ballot question, the statute is un-constitutionally overbroad. There is no dispute that Section 211B.11 prohibits certain partisan material within the polling place that is not merely political campaign material. However, preventing individuals from both wearing “campaign” material and material aimed at confusing voters or designed to have an

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impact on voters within the polling place during the short time they are inside of a polling place on Election Day is a “reasonable” limitation on speech considering the function of a polling place.

The issue presented in the petition, however, is not whether Section 211B.11 is a reasonable speech limitation. Rather, it is whether Section 211B.11 is facially overbroad because it prohibits a substantial amount of protected speech “in an absolute sense,” and relative to its “plainly legitimate applications.” Hicks, 539 U.S. at 119-20. This high standard for striking down a statute is needed because “there comes a point at which the chilling effect of an over-broad law, significant though it may be, cannot justify prohibiting all enforcement of that law – particularly a law that reflects ‘legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.’ ” Id. (quoting Broadrick, 413 U.S. at 615).

The court of appeals correctly concluded that Section 211B.11 was not unconstitutionally overbroad because it has plainly legitimate applications and does not prohibit a substantial amount of protected speech. App. 6. Petitioners’ arguments to the contrary are unavailing.

There can be no dispute that application of Sec-tion 211B.11 to political campaign material (e.g., “Vote for Obama”) is clearly constitutional. See Burson, 504 U.S. at 211 (holding that a statute restricting speech “related to a political campaign” within 100 feet of the

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outside of a polling place survived strict scrutiny). Therefore, because application of Section 211B.11 to prohibit “political” buttons, badges, and parapherna-lia that are “political campaign” material is constitu-tional, this statute has a “ ‘plainly legitimate sweep,’ ” App. 6 (quoting Ferber, 458 U.S. at 769-70).

In fact the court of appeals’ decision that Section 211B.11 is not unconstitutional on its face because it applies to some “political” material that goes beyond “campaign” material is consistent with other circuit courts that have explicitly held that statutes pro-hibiting non-campaign related speech from near polling places are constitutional. See Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d 1213, 1218-19 (11th Cir. 2009) (upholding application of 100-foot campaign free zone to individ-uals soliciting voters exiting the polling place on matters not on the ballot); United Food & Commercial Workers Local 1099 v. City of Sidney, 364 F.3d 738, 748 (6th Cir. 2004) (upholding Ohio’s 100-foot cam-paign free zone that prevented individuals from soliciting signatures on non-ballot-related item, even in areas that included traditional public forums such as sidewalks); Schirmer v. Edwards, 2 F.3d 117, 122-23 (5th Cir. 1993) (upholding Louisiana’s total ban on “politicking” within a 600-foot radius of the polling place and its application to non-ballot-related political “buttons and T-shirts”). In Browning, City of Sydney, and Schirmer, the courts held that application of the relevant statutes to plaintiffs’ non-ballot-related speech satisfied strict scrutiny because the speech at

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issue in each case was outside of the polling place. Here, of course, because the speech limitation is limited to the interior of a polling place, Section 211B.11’s limitation need only be reasonable.

Thus, the fact that Section 211B.11 prohibits some “political” material beyond just “campaign” material from the interior of a polling place is not sufficient to establish that Section 211B.11 reaches a “substantial number” of unreasonable applications in relation to its constitutional applications. Washington State Grange, 552 U.S. at 449 n.6.

Petitioners also argue the statute’s use of the word “political” creates an unconstitutionally over-broad statute because everything can be considered political.7 For example, petitioners assert that this statute could be applied to red and blue sweaters, Pet. 18 n.42, wearing a cross or a star of David, and a military uniform, Pet. 25, because “[a]ll things can become political or politicized,” Pet. 25. This argu-ment is built on an absurd construction of the word “political” that is not grounded in Minnesota law, common sense, or how the statute has been applied during the last 100 years.

There are no Minnesota cases construing Section 211B.11’s speech limitation on wearing a “political badge, political button, or other political insignia.”

7 Petitioners have not made a vagueness challenge to Section 211B.11. See App. 9 n.2.

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However, even without an explicit statutory definition, the meaning of “political” within Minnesota’s anti-electioneering statute is plain and unambiguous. Under Minnesota law, words and phrases in the stat-ute are to be given their plain and ordinary meaning. See State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996). Various provisions of the same statute must be interpreted in light of each other. See Van Asperen v. Darling Olds, Inc., 93 N.W.2d 690, 698 (Minn. 1958). Finally, statutes are construed to avoid absurd or unjust consequences, see Erickson v. Sunset Mem’l Park Ass’n, 108 N.W.2d 434, 441 (Minn. 1961), or constitutional problems, see Pearson v. Probate Court of Ramsey County, 287 N.W. 297, 302 (Minn. 1939).

The prohibition on wearing “political” parapher-nalia within the polling place has a common-sense understanding. See Section 211B.06 (“political pur-pose” means “an act intended or done to influence, directly or indirectly, voting at a primary or other election.”). See also Respondents Policies, App. 64-65 (identifying non-campaign political material as “[i]ssue oriented material designed to influence or impact voting” and “[m]aterial promoting a group with rec-ognizable political views”). Petitioners’ and amici’s catalogue of the type of material that they believe could be considered “political” and prohibited by Sec-tion 211B.11 requires an absurd and unreasonable application of Section 211B.11. It is a desperate attempt to create overbreadth where none exists and is inconsistent with Minnesota law.

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2. The Court of Appeals’ Decision Does Not Conflict with Jews for Jesus.

Finally, in addition to arguing that Section 211B.11 is substantially overbroad, petitioners assert that review of the court of appeals’ overbreadth analysis is needed because the court’s decision con-flicts with Board of Airport Commissioners v. Jews for Jesus, 482 U.S. 569 (1987). While the petition spends considerable time arguing that Section 211B.11 conflicts with Jews for Jesus, Petitioners never even cited this case in the district court or the court of appeals. Petitioners’ “new” argument does not present a compelling issue requiring this Court’s review. The court of appeals’ decision does not conflict with Jews for Jesus, because the speech restriction in that case is dramatically broader than Minnesota’s limited speech restriction that applies only in polling places on Election Day.

In Jews for Jesus, the Court was confronted with a resolution promulgated by the Board of Airport Commissioners for Los Angeles International Air- port. The resolution provided, in pertinent part: “the Central Terminal Area of Los Angeles International Airport is not open for First Amendment activities by any individual and/or entity.” Id. at 570-71. In short, this ordinance, on its face, “reache[d] the universe of expressive activity, and, by prohibiting all protected expression, purporte[d] to create a virtual ‘First Amendment Free Zone’ ” Id. at 574. Not surprisingly, the Court held that the resolution was “substan- tially overbroad” and “not fairly subject to a limiting construction,” id. at 577, noting that the resolution

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did “not merely regulate expressive activity . . . that might create problems such as congestion or disrup-tion of the activities of those who use [the airport,]” but that it prohibited all first Amendment activity, including “even talking and reading, or the wearing of campaign buttons or symbolic clothing,” id. at 574-75. The Court concluded that, even if an airport was a nonpublic forum, no government interest could justify excluding all forms of protected expression from the airport and the ordinance was facially unconstitu-tional. See id. at 575.

Jews for Jesus is easily distinguishable from Section 211B.11 in several critical ways. First, unlike the resolution at issue in Jews for Jesus, Section 211B.11 does not purport to prohibit all protected expression, rather it is limited to certain political material. Second, unlike an airport that is used by individuals 365 days a year to travel and by many others engaged in commerce and other activities, Section 211B.11 is limited to the inside of a polling place on Election Day, a forum that is only used on Election Day by a limited number of individuals who are there for one purpose – to vote. Third, Section 211B.11 does not even prohibit all buttons and t-shirts, but rather only those with “political” content. Section 211B.11 is significantly narrower in the type of speech it prohibits and the scope of the location where the prohibition applies than the speech prohi-bition in Jews for Jesus.

Accordingly, the court of appeals’ overbreadth analysis does not conflict with Jews for Jesus.

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CONCLUSION

Minnesota law, like that of every other state, has long protected the sanctity of the polling place by creating a zone in which the only activity taking place is voting related. A critical piece of this protection is Section 211B.11, a reasonable and viewpoint-neutral restriction on wearing “a political badge, political button, or other political insignia” inside the polling place. The court of appeals correctly concluded that this restriction was not facially overbroad. Respon-dents respectfully request that the Court deny the petition and let petitioners proceed with their as-applied challenge in the district court.

Respectfully submitted,

NATHAN HARTSHORN OFFICE OF THE MINNESOTA ATTORNEY GENERAL 445 Minnesota Street, Suite 1800 Saint Paul, MN 55101 Telephone: (651) 757-1252 Attorneys for Respondent Mark Ritchie ROBERT B. ROCHE RAMSEY COUNTY ATTORNEY’S OFFICE 121 7th Place East, Suite 4500 Saint Paul, MN 55101 Telephone: (651) 266-3032 Attorneys for Respondents Joe Mansky and John J. Choi

DANIEL P. ROGAN

Counsel of Record BETH STACK HENNEPIN COUNTY ATTORNEY’S OFFICE A-2000 Government CenterMinneapolis, MN 55487 Telephone: (612) 348-5529E-mail: daniel.rogan @hennepin.us Attorneys for Respondents Rachel M. Smith and Michael O. Freeman